When you reach a point where you’re considering applying for disability, it can be a lot to take on. Not only can the initial decision take months, but with the administrative appeals process, some people can expect to wait up to a year or more to get a decision.
“The national average for wait time is 220 days, and general wait times have gradually increased over the past four years,” said attorney David S. Bary, with Joyce & Bary Law in Roanoke.
With that kind of wait time, and, in many cases, medical expenses stacking up, many applicants want to know if they can work while they wait for their application to be processed.
Bary said working while applying or collecting benefits can be problematic, so it’s important to understand the rules and limits.
The application process and substantial gainful activity
The application process, of course, comes first. After the initial online submission and client review, Bary said the Social Security Administration will determine if the applicant is still working and whether this work is substantial gainful activity (SGA) -- work that is both substantial and gainful.
“SSA considers work to be substantial if the work involves doing significant physical or mental activities,” Bary said. “Work may be substantial even if it is performed on a part-time basis, you are paid less or have fewer responsibilities than when you worked before. It is considered gainful if the work activity is performed for pay or profit. Work can still be considered gainful even when a profit is not realized.”
However, Bary said there can be exceptions to this rule, such as volunteer work or self-employment.
To be eligible for disability benefits, a person must be unable to engage in SGA. SSA regulations define disability as the “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months … You must have a severe impairment that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy.”
“A person who ‘grosses’ more than a certain monthly amount that’s less any impairment-related work expenses -- items or services needed to work because of your disability -- is ordinarily considered to be engaging in SGA,” Bary said. “The amount of monthly earnings considered as SGA depends on the nature of a person’s disability.”
He said the Social Security Act specifies a higher SGA amount for statutorily blind individuals, and federal regulations specify a lower SGA amount for non-blind individuals.
The monthly limits for 2024 are:
- Blind individual: $2,590
- Non-blind individual: $1,550
While there are a few exceptions, non-blind individuals grossing more than $1,550 a month may not be eligible for disability benefits.
[RELATED: Monthly SGA amounts by disability type]
Both SGA amounts change with fluctuations in the national average wage index.
Sheltered work
You might be doing sheltered work if your employer has made significant accommodations so that you can work.
“Sheltered employment is provided for handicapped individuals in a protected environment under an institutional program,” Bary said. “It is work performed by a claimant under special conditions that take into account their impairments, such as work done in a structured setting with a job coach, or as a patient in a hospital.”
This could look like flexible hours, a lower production quota or extra breaks. So, how can this type of work affect a disability application?
“Sheltered work cannot be considered substantial gainful work activity,” Bary said. “Suppose a claimant in a sheltered work setting is forced to stop because of the removal of the special conditions that were related to their impairment and essential to their work. SSA may find that this work does not constitute substantial gainful activity.”
Bary said these decisions are made on a case-by-case basis. It is essential for the claimant or representative to gather information proving the work is sheltered or performed under special considerations.
The medical determination
Once SSA determines the applicant is not doing SGA, the claim is forwarded to the Disability Determination Service (DDS) -- a state agency assigned to make medical determinations on behalf of SSA. Upon receipt of the file, DDS assigns the claim to an analyst who gathers medical, vocational and other necessary evidence.
“Once the file is complete, it is reviewed by a DDS medical consultant who conducts a paper file review and makes a medical determination,” Bary said. “The medical consultant does not interview nor examine the disability claimant during this review.”
Determining functional capacity
During this phase, the DDS medical consultant assesses the claimant’s physical and mental functional capacity. Functional capacity is the most you can do in a work setting, despite physical or mental limitations. To determine an applicant’s functional capacity, SSA will consider medical evidence and the claimant’s ability to perform household chores and participate in social activities or hobbies. Because of this, the claimant must describe the true nature and extent of their ability to carry out and participate in daily and social activities.
“The claimant will be asked to complete a function report, various questionnaires and a work history report during the determination process,” Bary said. “These forms can be outcome-determinative under certain circumstances.”
For instance, Bary said the SSA will consider the claimant’s ability to perform past relevant work -- work you have done within the past 15 years -- that was substantial gainful activity, and that lasted long enough for you to learn to do it.
“The ability to perform past relevant work can be extremely important in cases where the claimant is 50 years or older,” he said.
When to seek help from a disability attorney
There’s no question that applying for Social Security Disability can be an overwhelming and confusing process. It is notoriously complicated. How can you know when it might be time to hire a disability attorney?
An attorney who specializes in SSD understands the ins and outs and speaks the same language as the SSA. But there are questions to ask before deciding on a firm:
1. Does the firm file the initial application, appeals, relevant forms and questionnaires during the administrative claims process?
“Joyce & Bary Law prefers to take a case at the initial level,” Bary said. “We file applications and appeals, and complete all forms required during the medical determination.”
2. Does the firm deal directly with SSA, DDS and hearing offices?
“We instruct SSA not to contact our clients,” Bary said. “All communication is handled through our office.”
3. Does the firm “outsource” cases to non-attorney representatives or contract attorneys?
“Joyce & Bary Law handles all its cases in house,” Bary said. “I deal directly with my clients and will represent them at the hearing level if necessary.”
Bary added that experience within a firm’s main practice area is key.
“JBL is a disability firm,” he said. “I have represented claimants for more than 23 years and attended thousands of disability hearings. By filing the initial application, and subsequent forms on behalf of our clients, we ensure the information provided is accurate and relevant to the issue of disability.”
[RELATED: What does a disability attorney do? | When to talk to a disability lawyer]
Bary said it is important to hire a disability attorney who is experienced and understands the hearing process, SSA’s regulations and rules regarding disability and the various medical and vocational issues that may arise during the hearing.
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